MISC 315582

April 27, 2009

NORFOLK, ss.

Plaintiff, 81 Spooner Road, LLC (Developer) commenced this action on November 10, 2005, as an appeal, pursuant to G.L. c. 40A, § 17, from a decision of defendant, the Town of Brookline Zoning Board of Appeals, to rescind the issuance of a building permit concerning a parcel of real property, known as and numbered 71 Spooner Road in Brookline, owned of record by the Developer.

On November 23, 2005, defendants, George P. Fogg, III and Frances K. Fogg (Foggs), filed a Motion to Consolidate this case with Fogg v. Brookline Board of Appeals, Misc. Case No. 315662. The Developer opposed the motion on December 1, 2005. The motion was argued on December 27, 2005, and taken under advisement. The court (Trombly, J.) issued an Order on January 3, 2006, denying the Motion for Consolidation. However, these cases have been maintained as companion cases, ever since.

On February 22, 2006, the Developer filed a Motion for Summary Judgment, challenging the Foggs standing. The Foggs opposed the motion and filed a Cross-Motion for Summary Judgment on March 23, 2006. The motions were argued on May 11, 2006, and taken under advisement. The court issued a Decision on April 13, 2007, denying the Developers Motion for Summary Judgment.

Trial was held on both companion cases on December 4 and December 5, 2007. Karen Smith reported the testimony. Testifying were George P. Fogg, III, Timothy J. Kelleher, James J. Kirby, James J. Nickerson, and Dennis P. Cronin for the Developer and Frederick Velander and Christopher H. Mulhern for the Foggs. Nineteen exhibits were admitted into evidence. On March 3, 2008, the Developer filed a Proposed Findings of Fact and Rulings of Law; the Foggs filed a Request for Findings of Fact and Rulings of Law; and the Board of Appeals filed a Post-Trial Brief.

After careful consideration of all of the evidence, the court entered a Decision today, ruling that the Brookline Zoning Board of Appeals properly rescinded the building permit for a single-family dwelling on the Property.

In accordance with that Decision, it is hereby

ADJUDGED and ORDERED that the decision of the Brookline Zoning Board of Appeals is AFFIRMED.

By the Court (Trombly, J.).

Attest:

Deborah J. Patterson

Recorder

Dated: April 27, 2009

FOOTNOTES

[Note 1] If not specifically defined herein, each term carries the same definition employed in the Decision.